#321 Third Department Caselaw Round-Up for March 15, 2012, Part 1 of 1

The second case illustrates what happens in a divorce where one party (usually the husband) has substantially more income than the other party (usually the wife), and how that affects equitable distribution and awards of maintenance. Also, when you are the one making substantially more money than your (soon to be ex) spouse, it's always better to view the glass as being half full instead of half empty.

The defendant was indicted on multiple counts for carious crimes involving "sexual contact with two underage victims". After a trial, the defendant was convicted of sexual abuse in the first degree for each victim and was thereafter sentenced to consecutive 7 year prison terms. For some reason, the court failed to sentence the defendant to any term of post-release supervision, which would make this an illegal sentence. As a result, the defendant had to be resentenced, this time with the addition of (presumably) consecutive 2 year terms of post-release supervision. So, worst case scenario for the defendant? He's looking at 14 years in prison to be followed by 4 years of post-release supervision.

The defendant appealed.

The defendant's primary argument on appeal is as follows:
1. The court lacked the jurisdiction to resentence him because certain time restrictions were not met.

While there seems to have been other arguments, the Third Department did not address them, focusing only on this one argument. Bottom line? "New York courts have the inherent authority to correct illegal sentences."

The husband commenced an action for divorce. Presumably due to allegations made in the pleadings, the court directed the parties to submit to drug testing and prohibited the parties from any wasteful dissipation of the marital assets. Thereafter, the husband made a motion to have the wife held in contempt for both using drugs and alcohol and selling marital assets. While the court found the wife to be in contempt, it did not punish her.

The husband appealed.

The arguments on appeal were as follows:
1. The court erred in valuing the husband's checking account at a given time;
2. The court erred in awarding the wife 50% of the checking account assets;
3. The court improperly addressed the wife's wasteful dissipation;
4. The court erred in awarding the wife a 50% interest in the marital residence;
5. The court erred in determining the wife's award of maintenance; and
6. The court erred in not imposing attorneys fees on the wife for her contempt.

The Third Department disposes of all six arguments.

First, "the court has substantial discretion in setting the valuation date any time between the commencement of the action and the date of the trial".

Second, "there was no conclusive proof that the checking account had increased in value since the commencement of the action solely as a result of the addition of the [husband's] separate property."

Third, the court "adequately addressed [the wife's] dissipation of marital assets" and awarded the husband "adjustments to compensate him for the value of various items of marital property that had been improperly sold" by the wife.

Fourth, "while the evidence did indicate that [the wife] had not maintained the residence in optimal condition, there was also evidence that the real estate market was overburdened with properties in the residence's price range and that market conditions, in general, had declined."

Fifth, "the amount and duration of maintenance awarded is a matter committed to the discretion of the trial court", so long as all of the statutory factors have been duly considered by the court (as seems to have occurred here).

Sixth, due largely to the parties' "disparate incomes", the Third Department found no abuse in discretion by the court's failure to award the husband attorney's fees for the wife's contempt. Again, instead, what the court appears to have done was merely take the wife's contempt into consideration when making "adjustments" with regard to the wife's dissipation of marital assets.

Just as a post script, because I know you're wondering: the husband was ordered to pay the wife $3,000.00 per month for 2 years and then $2,500.00 per month for 3 more years as an award of maintenance. That is basically an award of maintenance of $162,000.00 over 5 years, and is probably an indication of how radically different the parties' incomes were from one another. Then again, it seems at least adequate, considering that the court stated that "of particular note is the long duration of the marriage and the parties' widely disparate future financial circumstances." The husband should probably just be grateful that he wasn't ordered to pay the wife more in maintenance.